Open Records and Confidentiality

“Every person shall have the right to examine and copy public records ... [however] the following records shall be kept confidential unless otherwise ordered by a court, by the lawful custodian of the records, or by another person duly authorized to release such information ... The records of a library which, by themselves or when examined with other public records, would reveal the identity of the library patron checking out or requesting an item or information from the library. The records shall be released to a criminal or juvenile justice agency only pursuant to an investigation of a particular person or organization suspected of committing a known crime. The records shall be released only upon a judicial determination that a rational connection exists between the requested release of information and a legitimate end and that the need for the information is cogent and compelling.” (Iowa Code sections 22.2 and 22.7(13))

Library boards should take every precaution to guard the confidentiality of library customers. This includes ensuring that:

a confidentiality policy for the library is adopted by the board

circulation cards for library materials, which the public see, do not indicate the name of the customer checking out the material

circulation records in an automated system are not kept after statistics are recorded and the material is returned, and any fines or fees attached to the record are paid

overdue notices are sent only in sealed envelopes or via e-mail and never on postcards where others could see what the customer has checked out

phone reminders of overdue items and reserves left on answering machines maintain confidentiality

Included in a policy on confidentiality should be statements on the confidentiality of library circulation records and a statement as to when the custodian of the records may open the records. The identity of which customer requested which materials or information may be revealed only:

if the library is presented with a court order. (The court order must indicate that this information is needed for the investigation of a particular person or an organization and may only be issued after a judge has determined if the connection between the case and the record makes it “cogent and compelling” that the information is released.)

if the lawful custodian of the records, defined by an Iowa Attorney General’s opinion to be the library director, releases the information. (To safeguard customers’ confidentiality, the library board should state in the policy that the record shall be opened by the lawful custodian only upon receipt of a court order as indicated above.)

Library customer information (such as names and addresses) that is not attached to a circulation record may also be kept confidential if the library board reasonably believes that releasing the information would discourage people from applying for library cards. The board should adopt a policy on release of this type of information. See Iowa Code section 22.7(18).

Questions on Confidentiality and Open Records

Q. Can parents see their children’s library records to determine whether they have overdue materials?

A. This is a complex question and the library board may want to consult with the city attorney for legal advice. According to a 1993 letter from the Legal Consultant at the Iowa Department of Education, persons who contract with a minor do so at their own risk for the minor lacks the legal capacity to contract. Parents, under Iowa Code 613.16, are liable for the acts of their children. At the same time, Iowa Code subsection 22.7 (13) protects the confidentiality of all library patrons regardless of age. Thus, parents are liable for the acts of their children and yet children are included in the right to have their library records kept confidential. Obviously, libraries are in a difficult position as a result of these two Iowa Code sections.

As noted previously, Iowa Code section 22.7 does allow for discretion on the part of the custodian of the records, who is the library director. In other words, the Iowa Code gives the custodian of the records, the library director, the authority to decide whether or not to release library records. If records are requested by a criminal or juvenile justice agency, the library director may release the records only upon receiving a court order.

The board should adopt a confidentiality policy which designates the library director as the custodian of the records and which states when the library director may release the records. Some libraries in Iowa will not release the records of a child to a parent under any circumstance. Others will release them in certain situations. To protect intellectual freedom, library boards should err on the side of confidentiality. Releasing the records of a library patron, regardless of age, should be the exception rather than the rule. For example, if a three year old has checked out a number of Dr. Seuss books and the parent wants to know the titles to be sure all items have been returned, many library boards would find it reasonable to release the titles. However, the older the child is, the more difficult the decision becomes. If it is a 14 year old child who has checked out books on child abuse and adult alcoholism, most library boards would, without question, protect this child’s confidentiality.

A parent who wishes to know what a child has checked out has at least two other options besides asking the library director for the child’s library records. A parent could simply ask the child what is checked out or require the child to check out materials under the parent’s card.

Q. If requested for a purpose such as a library fund raiser, may the library provide lists of library card holders?

A. Yes, as long as the list does not link the customer with the material or information requested, it is an open record and is open to inspection by the general public. However, as noted earlier, this information may also be kept confidential if the library board reasonably believes that releasing the information would discourage people from applying for library cards.